Prosecuting a police officer requires 'sober reflection'
Dec. 27, 2014 at 10:15 p.m.
Updated Dec. 27, 2014 at 10:58 p.m.
In legal terms, the process of prosecuting a police officer is no different than for a civilian.
But doing so can be a political land mine as decisions to not charge police officers in the deaths of men in Ferguson, Mo., and Staten Island, N.Y., have shown.
Victoria Criminal District Attorney Stephen Tyler addressed questions about how the grand jury works earlier this week during a Rotary meeting and in an interview with the Advocate.
Tyler is awaiting the results of a Texas Ranger investigation of Victoria Police Officer Nathanial Robinson.
Dashboard camera video captured Robinson on Dec. 11 throwing 76-year-old Pete Vasquez to the ground and tasing him twice.
Robinson had stopped Vasquez for an expired inspection sticker. Now, he's being accused of using excessive force.
Tyler explained that when law enforcement prepare information about a criminal offense, his office will then decide whether to present to a 12-member grand jury a draft indictment with a suggested charge on it.
Tyler said he wouldn't use the grand jury to avoid any political pressure on his office. He said he thought it would be a "dereliction of duty" to present the case to a grand jury if he found after reviewing the Texas Rangers' information, Robinson had not broken the law.
Franklin E. Zimring, a law professor at the University of California-Berkeley's Earl Warren Legal Institute, has been studying the police use of force nationwide.
By Zimring's estimates, between 400 to 500 civilians are killed by police every year.
He said his death toll estimate is conservative. He found the number of police shooting deaths by combing through supplemental reports police departments submit to the FBI. Data is missing, though, as some police departments don't report the deaths and those that do report only deaths where police action was found to be justified.
"Secondly, the data is never audited. The cops could say that it was done by little green police officers, and the FBI would never check the story," Zimring said.
Alex S. Vitale, a criminologist at Brooklyn College, said what's also troublesome is how district attorneys must weigh how prosecuting a police officer will affect other, unrelated cases.
"A position like that often hinges on the degree of support they receive from police and their allies," Vitale said. "I've called for the creation of a blue desk in the state attorney general's office here in New York that can handle police prosecutions, and I think using the Texas Rangers in this case is a great step in the right direction."
Although special prosecutors can be appointed in Texas on a case-by-case basis, a separate office would be better, Vitale said.
"They can develop expertise and political independence," he said.
Both Zimring and Vitale said no central database tracks how often police are charged with or convicted of a crime.
Vitale also said prosecution of police is difficult partly because of a 1989 U.S. Supreme Court decision, Graham V. Connor.
The decision means jurors must put themselves in the police officers' shoes and determine whether their actions were reasonable.
"If you are already generally favorably predisposed to police, that way of analyzing the situation just extenuates that positive view," Vitale said.
However, William Johnson, executive director of the National Association of Police Organizations, said he thought police officers were now being used as "the whipping boy for society's ills."
Unlike Vitale, he said he could see how district attorneys might be more inclined to prosecute police simply to "make brownie points with certain segments of the community."
Johnson said the Graham v. Connor ruling was a good one. In the U.S., one is innocent until proven guilty, after all, he said.
"Remember, everybody is supposed to get the benefit of the doubt. Unless a prosecutor proves a case beyond a reasonable doubt, a jury has to acquit, and that's true whether it's O.J. Simpson or a police officer," Johnson said.
Tyler has prosecuted Victoria law enforcement before.
In 2007, former Victoria police officer Carlos Javier Echeverry was charged with official oppression.
Echeverry was accused of stopping and detaining a woman Aug. 20, 2006, for the purpose of making a sexual advance. Specifically, he was charged with touching the woman's breasts, according to the indictment.
After a three-day trial, a jury found Echeverry not guilty.
Assistant district attorneys handled the case against Echeverry while Tyler was prosecuting a murder in another courtroom.
Tyler said he remembers former Victoria Police Chief Bruce Ure sitting with Echeverry throughout the proceedings, which he thought was inappropriate.
The offices had a falling out after Echeverry was acquitted, in part because Echeverry kept his job.
Echeverry no longer works at the Victoria Police Department, according to a roster last updated Dec. 8.
Tyler also later prosecuted Ure, a police lieutenant and two other city officials. Some of the charges against them were aggravated perjury and misuse of official information. A judge dismissed the cases. The city officials accused Tyler of retaliating because they had expressed concerns about the criminal investigation of the DA's chief of staff.
Tyler said he would make a decision about what to do in this tasing incident independently of what has happened in the past. The DA's office works well now with the Victoria police department under the leadership of Police Chief J.J. Craig, he said.
He said he took on Echeverry's case because he believed the witness and the police officers who had investigated. One police officer went on to become a federal agent. Another is the police chief in Seguin, Tyler said.
"The source of the friction was because of the person who was the chief of police (in Victoria), not because of one particular investigation or prosecution," Tyler said. "I don't have any qualms about prosecuting people that I think are guilty, regardless of what they do for a living."
Although he was unwilling to discuss the tasing before hearing from the Texas Rangers, Tyler has said a possible charge for Robinson could include injury to an elderly, a third-degree felony, or official misconduct, a misdemeanor. At the same time, he said, Vasquez could face a charge of resisting arrest, a misdemeanor.
Tyler pointed to Section 38.03 of the Texas Penal Code, which states a person cannot resist arrest even if is an unlawful arrest.
"I need to make sure we're approaching it with no preconceived notions. We're looking at all events of all parties objectively," Tyler said. "Justice is not about what the mob is screaming. These are important decisions that demand sober reflection."